< 


JK 118S 
. 52d 


.F6 

$ Copy 1 

\ 


j 


THE FLORIDA SENAT0RSH1P. 


DID THE FLORIDA LEGISLATURE OF 
1891 ELECT A SENATOR ? 


u 1 P\ 

OPINION OF GOV. F 1 P. FLEMING. 


Executive Department, ) 
Tallahassee, Fla., August 4, 1891. \ 

To the People of Florida: 

The term of office of Hon. Wilkinson Call, as United 
States Senator from Florida, expired March 3, 1891. It 
therefore became the duty of the Legislature of Florida, 
which convened on the 7th of April, 1891, under the pro¬ 
visions of law, to elect a United States Senator to fill the 
vacancy caused by the expiration of Senator CalFs term. 

Section 18 of the Revised Statutes of the United States 
provides: “It shall be the duty of the Executive of the 
“State from which any Senator has been chosen to certify 
“his election, under the seal of the State, to the President 
“of the Senate of the United States.” 

The question now presented for my consideration and 
determination is whether there was an election of a United 
States Senator by the said Legislature, so as to devolve 
upon me the duty of certifying the same to tfte President of 
the Senate of the United States. 

The facts, as to which there is no dispute, so far as I am 
advised, are as follows : On April 21, 1891, being the 
second Tuesday after the meeting and organization of the 

Hi" »,,>■)> > 1 ) I , • > 1 J 1 < 

* f i » i > > i i : * > » , ■ > 

i > > > > > > >>>>>,’ > < > i ) > 

> > 1 > ) > > > A I > > > > < 1 

> »>)>> j > > > > > > > > >>> j 


! . ' 





2 



✓ 



% 


v( y_, * 


Legislature, the Senate and House of Representatives, each 
in its own chamber, voted for a United States Senator, but 
in neither house did any one receive a majority of the whole 
number of votes cast. On Wednesday, April 22, the two 
houses convened in joint assembly, and the journal of each 
house was read, and, it appearing that no person had re¬ 
ceived a majority of the votes in each house the joint assem¬ 
bly proceeded to take a vote for United States Senator, but 
no person received a majority of all the votes of the joint 
assembly. The joint assembly continued to meet at 12 m. 
each succeeding day and took at least one vote, without 
electing a United States Senator up to and inclusive of Mon¬ 
day, May 25, 1891. On Tuesday, May 26, there was not a 
quorum of the Senate present in session, the whole number 
of the Senate being 32, and a majority being necessary to 
constitute a quorum. At 12 o’clock m. of that day the 
President of the Senate and 14 other Senators entered the 
hall of the House of Representatives and were received by 
the House. Roll call of the joint assembly disclosed 15 
members of the Senate present and 39 members of the House 
of Representatives, being a minority of the Senate and a 
majority of the House (the whole number of the House 
being 68.) A ballot was then taken for United States Sena¬ 
tor, whereupon Wilkinson Call received 14 votes of the 
members of the Senate present and 37 votes of the members 
of the House present, and D. H. Mays received one vote of 
the members of the House. The whole number of votes 
cast was 52, of which Wilkinson Call received 51 and D. H. 
Mays received 1; whereupon the presiding officer, Hon. 
Jefferson B. Browne, President of the Senate, announced 
that Wilkinson Call, having received a majority of all the 
votes of the joint assembly, and a majority of all the mem¬ 
bers elected to both houses being present and voting, is duly 
elected a United States Senator from the 4th of March, 1891. 
No other ballot for Senator was had during the legislative 
session. 


* i < <• 1 < « ' 1 * 

y • : i < < V ■ < . ( s , ^ 

< C « I l < * / < 4 c < < « i 

I ■<€. «C(.N<( \ * 

i < « < i i «■ i. i «v i n ‘ . v <. i < « • < 


4 « 
■ 1 


4 4 , f 


4 t « 
( a * 


‘ 4 < « , « 


« . 4 



V 


3 

Subsequent to the ballot taken on May 26th, and before 
the adjournment of the Legislature, a paper was filed with 
me signed by 15 members of the Senate and 26 members of 
the House, claiming and arguing that under the facts Wil¬ 
kinson Call was not elected United States Senator, as an- 
) nounced by the presiding officer of the joint assembly, and 

protesting against the issuance of a certificate of election to 
him. 

Subsequent thereto 15 other members of the Senate and 37 
members of the House signed and filed with me a paper set¬ 
ting forth the facts and claiming that Wilkinson Call was 
duly elected United States Senator on May 26th, and em¬ 
bracing an argument to sustain such claim. 

The question of the election of Mr. Call is limited to the 
inquiry whether a majority of each house, which is necessary 
to constitute a quorum, must be present and participate in 
the joint assembly in order to elect a United States Senator ; 
or whether a majority of the House and a minority of the 
Senate, a quorum of one and less than a quorum of the other, 
may meet in joint assembly and elect a Senator, provided a 
majority of all the members elected to the two houses, in the 
aggregate, is present and voting. . 

The Constitution of the United States, paragraph 1 of sec¬ 
tion 3, Article I, provides the “Senate of the United States 
shall be composed of two Senators from each State, chosen by 
the Legislature thereof.” Paragraph 1 of section 4 of the 
same article provides that “the times, places and manner of 
holding elections for Senators and Representatives shall be 
prescribed in each State b} r the Legislature thereof; but the 
Congress may at any time by law make or alter such regula¬ 
tions, except as to the places of chusing Senators.” 

There was no legislation by Congress on the subject until 
the act of July 25, 1866, which constitutes sections 14, 15, 
16, 17, 18 and 19 of the Revised Statutes. 

I will only refer at present to that portion of the act pro¬ 
viding for an election by the joint assembly of both houses 


4 


after the failure to elect by seperate vote in each house on 
the first day of the balloting, which is as follows: “ But if 
“ the same person has not received a majority of the votes in 
“each house, or if either house has failed to take proceed¬ 
ings as required by this section, the joint assembly shall 
“ then proceed to choose, by a viva voce vote of each member 
“ present, a person for Senator, and the person who receives 
“ a majority of all the votes of the joint assembly, a majority 
“ of all the members elected to both houses being present 
“and voting, shall be declared duly elected. If no person 
“ receives such majority on the first day, the joint assembly 
“ shall meet at 12 o’clock meridian of each succeeding day 
“during the session of the Legislature, and shall take at 
“ least one vote, until a Senator is elected.” 

The requirement of the Constitution of the United States 
is plain and positive that Senators from each State shall be 
chosen “ by the Legislature thereof.” What constitutes the 
Legislature? This question is answered as to Florida by 
section 1, Article 3, of the State Constitution, in the follow¬ 
ing language: “The Legislative authority of this State 
“ shall be vested in a Senate and a House of Representatives, 
“ which shall be designated ‘the Legislature of the State of 
“‘Florida.’” Section 11 of Article III of the Constitution 
provides that “A majority of each House shall constitute a 
“ quorum to do business, but a smaller number may adjourn 
“from day to day, and compel the presence of absent mem- 
“ bers in such manner and under such penalties as it may 
“ prescribe.” 

The Legislature of this State, as shown above, is composed 
of the Senate and House of Representatives, neither of which 
is authorized to do any business whatever without a majority 
which constitutes a quorum, except to adjourn from day to 
day, and to compel the presence of absent members. Neither 
exception involves the authority for less than a quorum of 
each house to participate in the election of a Senator, which 
is eminently a part of the business of the Legislature, as 


much so as the passage of a bill, the adoption of a resolution 
or the election of a legislative officer, which nothing less 
than a quorum of each house is permitted to transact. No 
other conclusion can be reached without a disregard of the 
provisions of the Constitution of Florida. 

The requirement of the Constitution of the United States 
that Senators shall he chosen by the Legislature evidently 
means a valid constitutional legislature consisting of two 
houses acting by a quorum of each. 

The Hon. Geo. McCreary, late Judge of the United States 
Circuit Court, formerly chairman of the Committee of Elec¬ 
tions of the United States House of Representatives, in his 
work on Elections, section 115, says: “ Under that clause 
ct of the Constitution providing that Senators may be ‘chosen 
u ‘by the Legislature’ of each State, an election of Senator, 
u to be valid, must be participated in by both houses of the 
“ Legislature in their organized capacity. It is not enough 
“ that a majority of the members of each should partici- 
u pate.” The cases of Harlan and of Bright and Fitch are 
cited to sustain the text. These cases will be considered 
hereafter. 

In People ex. rel. Upham vs. Whiteside, 23 Wendell, 9, 
the court held that “When the power of appointment of a 
“certain class of officers is given by law to two distinct 
“ bodies who are required to assemble in separate chambers 
“and make separate nominations and then meet together 
“and compare the nominations made, and on disagreement 
“ to proceed to an election b y joint ballot: no election is valid 
“ unless both bodies assent to go into joint meeting for that 
“ purpose and actually attend. 

“Nor is the removal of an officer valid unless there be a 
“ like assent and attendance, although one of the bodies 
“ refuse to go into joint meeting after due notice given to 
“ them for that purpose.” 

The same principle is decided in King vs Butler, 8 East., 
139. 


6 


The argument in behalf of the election of Mr. Call con¬ 
tends that whatever may have been the requirement prior to 
the passage of the act of 1866, that under the provisions of 
this act it is not necessary that both houses should be present 
in their organized capacity, but that such act only requires 
that the members of the two houses should meet in joint 
assembly, and that less than a majority of one house may 
meet and act with the other, provided there is a majority of 
all the members elected to both houses present and voting. 
It is further argued that the validity of this statute is 
recognized by the Constitution of the State of Florida, 
Article III, section 31, which provides that “the Legisla¬ 
ture shall elect United States Senators in the manner pre¬ 
scribed by the Congress of the United States and by this 
Constitution.’* To sustain their position they cite the fol¬ 
lowing extract from the report of the Committee in the 
Eustis case, (Taft’s Senate Election Cases, 508): “Your 
“ committee find that although the Senate refused to take 
“ part as such in said Election, and although a minority of 
“the Senate only did take part in it, yet there was a sub- 
“ stantial compliance with the act of Congress of 1866. 
“Upon the constitutionality of that act, your committee 
“ express no opinion. The Senate has repeatedly, however, 
“ by its action, affirmed its constitutionality; and your com- 
“ mittee feel bound by the precedents which the Senate has 
“ established.” 

They quote also at considerable length from the report of 
the majority of the committee in the Montana cases, of 
which, as follows : “ The suggestion has been made that, to 
“elect a Senator, there must be in existence a Legislature 
“ exercising, or at least capable of exercising the law-making 
“ function, and that when this function is interrupted or 
“abdicated, or has never been set in motion because either 
“house refuses to recognize and act in concert with the 
“ other, or because the Governor refuses to treat either as 
“possessed of legislative authority, there is, in fact, no 


7 


“Legislature in the constitutional sense, and, therefore, 
“ nobody competent to appoint a Senator.” ***** 

“ The suggestion is ingenious but we do not thfnk it will 
“ bear examination.” ****** 

“ This theory enables one house, or the Executive, to 
“ overthrow at once all constitutional securities for the 
“ preservation of the legislative power. It is utterly opposed 
“ to the act of Congress prescribing the manner of the election 
“ of Senators (Revised Statutes, section 14 to 19). If no 
“ concurrent election be had, ‘ the members of the two houses 
“ 1 shall convene in joint assembly.’ 

“ This is intended to put it out of the power of a majority 
“of either house to prevent a choice of a Senator. This 
“ provision we think clearly constitutional. It is in accord- 
“ ance with legislative usage in the manner of electing 
“officers whose choice maj r be prevented altogether if two 
“ distinct bodies must concur to produce a valid result.” 

The following from McCreary on Elections in sections 117 
is cited : “ The principal purpose of the act of Congress was 
“ to deprive one house of the Legislature of the power to 
“prevent an electing by refusing to go into a joint conven¬ 
tion for that purpose.” 

The election cases referred to will be considered hereafter. 
The whole section from which the quotation from McCreary 
was taken is as follows : “ It is not necessary, under the act 
“ of Congress of July 28th, 1866, to regulate the time and 
“ manner of holding elections for senators in Congress, that 
“ the election by the Legislature should actually take place 
“ on the ‘ second Tuesday after its organization.’ It is 
“ enough if on that day the Legislature takes action on the 
“ subject, and actually votes, though unsuccessfully, for a 
“ person to fill the office of senator. The Legislature must, 
“ however, continue to meet in joint convention until a 
“ choice is reached. The principal purpose of the act of 
“ Congress was to deprive one house of the Legislature of 
“the power to prevent an election by refusing to go into a 




8 


cc joint convention for that purpose/’ The language of the 
learned author does not appear to be used in the same con¬ 
nection as that by the committee in the Montana cases, and 
whatever may he his opinion as to the “ purpose of the act 
“ of Congress ” his legal reputation is too high to suppose that 
he intended in section 117 to convey the idea that Congress 
is competent to enact a law which would avoid what, in sec¬ 
tion 115, he declares to be a requirement of the Constitution, 
that is, that an election of a Senator to be valid must be 
participated in by both houses of the Legislature in their 
organized capacity, especially as he sets forth in section 117 
that the Legislature must continue to meet in joint conven¬ 
tion and not a majority of the members of the Legislature. 
It is more reasonable to suppose his meaning to be that the 
act emphatically imposed the obligation of duty upon each 
to attend the joint assembly until a choice is reached. 

The Constitution of the United States is the supreme law 
of the land, and wherein the Constitution of Florida or an 
act of Congress may be in violation of it, the State Constitu¬ 
tion or the act, to that extent, is void. . I am not prepared, 
however, to pronounce either Section 31 of Article III of the 
Florida Constitution invalid, as in derogation of the Consti¬ 
tution of the United States, or the said act of Congress un¬ 
constitutional. In each the Constitution requirement of 
paragraph \, section 3, Article I, that Senators shall be 
“ chosen by the Legislature,” is recognized and expressed. 
The language of the State Constitution being “ The Legis¬ 
lature shall elect United States Senators,” etc., and the said 
act of Congress (section 14, Revised Statutes) “ The Legis¬ 
lature of each State which is chosen next preceding the 
“ expiration of the time for which any Senator was elected 
“ to represent such State in Congress shall, on the second 
“Tuesday after the meeting and organization thereof, pro- 
“ ceed to elect a Senator in Congress.” 

We have.the following rules of construction of statutes: 
“The popular or received import of words furnishes the 


4 


9 


“ genera] rule for the interpretation of statutes/’ (Potter’s 
Dwarris on Statutes, 143.) 

“Statutes should be interpreted according to the most 
“natural and obvious import of their language/’ (Ibid, 144.) 

The same rules of interpretation apply to the Constitu¬ 
tion. (Ibid 656.) 

Applying these rules to the provision of the Constitution 
of the United States, the Constitution of Florida last re¬ 
ferred to, and to the said act of Congress, the “popular and 
“received” and the “most natural and obvious import” of 
the word Legislature is that body, consisting of two organ¬ 
ized houses, to-wit: the Senate and House of Representatives, 
and not an aggregation of the members elected to both with¬ 
out reference to the organization of either. Language could 
not be plainer or more forcible to express such meaning. If 
the framers of the Constitution intended to provide for the 
election of a Senator, as contended it may be done by the 
argument for Mr. Call, without the requirement of partici¬ 
pation by the two houses in their respective organized ca¬ 
pacity, they would have used the words, chosen by the mem¬ 
bers of the Legislature, or words of like import, instead of 
“chosen by the Legislature.” 

The following language in the act of Congress: “The 
“person who receives a majority of all the votes of the joint 
“assembly, a majority of all the members elected to both 
“houses being present and voting, shall be declared elected” 
without reference to the preceding section of the act, or the 
Constitution would appear to be susceptible of the construc¬ 
tion contended for it in behalf of Mr. Call. But, in my 
opinion, such would be to give it a construction in violation 
of the Constitution. 

“It is a cardinal rule that all statutes are to be so con¬ 
strued as to sustain rather than ignore or defeat them; to 
“give them operation, if the language will permit, instead of 
“treating them as meaningless: ut res magis valeat, quam 
“ pereat . Whenever an act can be so construed and applied 


10 


“as to avoid conflict with the Constitution, and give it the 
“force of law, this will be done. When one construction will 
“make a statute void for conflict with the Constitution, and 
“another would render it valid, the latter will he adopted 
“though the former at first view is otherwise the more 
“natural interpretation of the language.” (Sutherland, 
Stat. Cons., section 332.) 

Webster defines the word “both” as “two considered as 
“distinct from others or by themselves; the one and the 
“other.” Applying this definition to the clause “a majority 
of all the members elected to both Housfs,” it may readily 
be construed a majority of all the members elected to the one 
house and of all elected to the other—a majority of each 
house constituting the valid Legislature as expressed in the 
Constitution of the United States, the preceding section of 
the act and the Constitution of Florida. Such construction 
avoids conflict with the Constitution and harmonizes all 
parts of the act. 

“In the construction of a statute, every part of it must 
“be viewed in connection with the whole, so as to make all 
“its parts harmonize, if practicable.” Potter’s Dwarris on 
Statutes, 144-5. 

If the construction contended for in the argument for Mr. 
Call is correct, it would follow as a logical sequence that the 
House of Representatives, which in the number of its mem¬ 
bers constitutes a majority of all the members elected to both 
houses, is competent to elect a Senator without participation 
by the Senate; and, indeed, with 51 members of the House 
present and voting, and no member of the Senate, and 26 
votes cast for an individual (being a majority of 51) would 
elect a Senator. Would it be contended by any one that 
such an election would be the choosing of a Senator by the 
Legislature, as required by the Constitution ? 

It has been suggested, but I do not think it has ever 
been seriously contended, that section 4 of Article I of the 
Constitution of the United States which provides that 


11 


‘‘The Times, Places and Manner of holding Elections for 

Senators and Representatives shall be prescribed in each 
u State by the Legislature thereof, but the Congress may at 
“ any time by law make or alter such Regulations except as 
“ to the places of chusing Senators,” permits Congress to 
depart from the requirement of paragraph 1, section 3, 
Article I, which designates the body authorized to elect a 
Senator. The regulations of the time, place and manner of 
electing a Senatoi^ftre given, in the first place, to the States, 
with the right of Congress to make or alter such regulations, 
in no sense authorizing Congress to change the body or sub¬ 
stitute any other body or organization, with power to elect. 
Congress lias not been delegated any power to create an as¬ 
sembly other than the Legislature for such purpose. The 
words “ manner ’’ and “ regulations ” are not susceptible of 
such a construction. 

It is contended in the argument for Mr. Call that the con¬ 
struction of the statute upon which the claim of his election 
is based, is sustained by the Senate in numerous precedents. 
I will now take up the cases which appear to have a bearing 
upon this investigation. 

The first is the case of Mr. Harlan from Iowa (Taft’s 
Senate Election Cases, 155,) which is directly in point, with 
a remarkable similarity as to numbers, and was decided upon 
the identical issue herein involved. 

After several ineffectual ballots, the joint convention of 
Iowa, as it was termed, on January 5th 1855, adjourned 
until 10 o’clock next day. The Senate met at 9 o’clock, 
January 6th, and at once adjourned until January 8th. It 
did not proceed to the hall of the House in a body though 15 
members of the Senate attended. (The whole body of the 
Senate was 31.) There were present a majority of the 
House and a minority of the Senate—a quorum of one and 
not a quorum of the other. The roll was called and a ma¬ 
jority of the members of both houses, not a majority of each 
branch, answered to their names. The Speaker declared that 


12 


the joint assembly was regularly organized according to its 
adjournment and proceeded to vote for a United States 
Senator. Mr. Harlan received 52 votes and was declared 
elected. 

I quote from the pertinent argument of Mr. Bayard in the 
Senate on this case as follows : u On this state of facts, the 
‘‘ question which I suppose to arise is, whether the Legisla- 
• ‘ ture of a State, under the language of the Federal Consti¬ 
tution, delegating to the Legislature 1 the right to elect 
“ Senators of the United States, is to be taken to mean the 
“ individual members of the Legislature, or the body or 
‘ ■ bodies of which the Legislature is composed. I suppose 
tl the term as used in the Constitution means the bodies of 
u which the Legislature is composed. The honorable Senator 
“ from Georgia, if I appreciate his argument, insists that the 

power being delegated to the Legislature, is vested in the 
“ members of the Legislature, and that whenever a majority 
“ of the members of the whole Legislature, under a law as 
£i that existing in Iowa, vote for a man, he is elected, though 
“ one of the co-ordinate branches of that Legislature may not 
“ vote for him, and may, as a body, refuse to go into an elec- 
“ tion. Sir, I hold it to be a principle of law which has, I 
11 think, no exception that where two integral bodies are 
‘ ; authorized to do an act, it cannot be done without the con- 
“ sent of those two integral bodies. They must both be 
‘‘present and act in the matter, or there can be no validity 
“ in the act done. This is a universal law. I can call to 
“ mind no case where a contrary principle prevails, whether 
t£ relating to legislative action or corporate action. Indeed, 
“ in reference to corporations, it has been decided over and 
“ over again that where there are two integral bodies who 
u must concur in an act, they must both be present and act 
“ upon the matter as bodies, not as individuals. ,, 

It was held by the Senate in accord with the report of the 
Judiciary Committee, that Mr. Harlan was not entitled to 
his seat. 


13 


It is argued that this case does not apply to the question 
of Mr. Call’s election because it was determined hy the Sen¬ 
ate before the passage of the act of 1866. Such contention 
ignores the fact that the law of Iowa, under which such at¬ 
tempted election was held, was substantially the same as 
those provisions of the act of Congress, in accordance with 
which it is claimed Mr. Call was elected. The Iowa statute 
provided that “The members of both houses shall meet in 
“convention in the hall of the House of Representatives for 
“the purpose of electing a Senator,” etc. “When the con¬ 
tention shall be organized as aforesaid the members present 
“shall proceed to choose viva voce a Senator,” etc. “When 
“any person shall have rtceived a majority of the votes 
“aforsaid the president shall declare him to he duly elected 
“Senator.” 

An act of the Legislature passed in pursuance of Section 
4, Article I, of the Constitution of the United States was at 
that time just as binding upon the Senate as was the act of 
Congress when it became a law. 

The next cases are those of Bright and Fitch between 
which there is no distinction. 

There was a dispute as to the facts, as shown by the report 
of the Judiciary Committee of the Senate in the Fitch case, 
as follows : (Taft’s Senate Election Cases 167,) “The com- 
“rnittee have had the same under consideration, and find 
“that important matters of fact alleged by the protestants 
“in connection with the manner in which the election of the 
“sitting member was had are denied by him, and that it be- 
“comes necessary, in the opinion of the committee, to take 
“the testimony of persons residing in the State of Indiana, 
“for the better ascertainment of these disputed facts. For 
“instance, it is, among other things, alleged hy a portion of 
“the protestants that ‘there was no joint convention of the 
“two houses ot said general assembly on said day on which 
“the election in dispute took place, and that a minority only 
“of the legally sitting Senators of Indiana participated in 


14 


“said election, which statements are denied by the sitting 
“member; and he affirms, on the contrary, that ‘he was 
“ ‘elected to said office by a majority of all the members 
“ ‘composing the Legislature of the State, they being then 
“ ‘and for that purpose assembled in joint convention/ and 
“that he was elected whilst in such joint convention by a 
“majority of the legally qualified members of the Senate of 
“the State and of the legally qualified members of the 
“House of Representatives, respectively. For the proper 
“ascertainment of these contested facts, and the better eluci¬ 
dation of the matters in dispute contained in the several 
“protests herewith submitted, and the reply of the Hon. 
“Graham N. Fitch, your committee recommend that leave 
“be given to take testimony in the City of Indianapolis and 
“State of Indiana, and recommend the adoption of the fol¬ 
lowing resolution.” 

The resolution provided for the taking of testimony as to 
the disputed facts. 

There was a resolution finally passed authorizing the tak¬ 
ing of testimony in the case. The testimony was taken and 
the committee reported that Graham N. Fitch and Jesse I). 
Bright, Senators returned and admitted from the State of 
Indiana, are entitled to their seats. 

The findings of the facts are not stated in the report of 
the committee, nor is the testimony reported in Taft’s Elec¬ 
tion Cases to which I refer. But from the report of the 
committee sustaining Mr. Fitch, it is reasonable to suppose 
that his contention as to the facts was sustained. 

Mr. Eustis from Louisiana was admitted to his seat in 
December, 1877, upon an election by the House of Repre¬ 
sentatives and a minority of the Senate. The committee, 
in their report (Taft’s Senate Election Cases, 508,) say: 
“ Your committee find that although the Senate refused 
“ to take part as such in said election, and although a minor- 
“ ity of the Senate only did take part in it, yet there was a 
“ substantial compliance with the act of Congress of 1866. 


15 


11 Upon the constitutionality of that act your committee ex- 
u press no opinion. The Senate has repeatedly, however, 
“ by its action, affirmed its constitutionality; and your com- 
“ mittee feel bound by the precedents which the Senate has 
“ established.’* 

The implied doubt in the minds of the committee as to the 
constitutionality of the act, in a substantial compliance with 
which they report Mr. Eustis elected, although only a 
minority of the State Senate participated, is significant. 
The Senate may well have affirmed the constitutionality of 
the act without holding such election to he valid. The 
committee close their report with the following paragraph : 
u This seat has long been vacant. Mr. Eustis is the only 
“ person who appears to claim it. The lawful character of 
u the Legislature which elected him is admitted. His elec- 
“ tion was substantially in compliance with the law of Conr 
“ gress. No one appears to contest his right to a seat. Under 
u these circumstances your committee believe that Mr. 
u Eustis should be admitted to the Senate, and report a reso¬ 
lution to that effect and recommend its passage.” 

The fact that the seat had long been vacant and that 
there was no contest for it doubtless had much weight with 
the committee and the action of the Senate in heating Mr. 
Eustis. 

W. P. Kellogg and H. M. Spofford each claimed to be 
elected by the Legislature of Louisiana, which convened in 
1877. A majority of the Committee on Privileges and 
Elections reported in favor of Mr. Kellogg. While such 
report shows that Mr. Kellogg was elected by a joint as¬ 
sembly composed of a majority of the House and a minority 
of the Senate, the constitutional objection to such an elec¬ 
tion does not appear to have been raised. The main ques¬ 
tion considered and treated by the reports of the majority 
and minority of the committee, which cover many pages, in¬ 
volving the heated political controversies which grew out of 
the elections of 1876, was wTiich was legal of the two rival 


16 


bodies each claiming to be the Legislature, one known as the 
Packard, or Republican Legislature, and the other the 
Nicholls, or Democratic Legislature. The former claimed 
to have elected Kellogg, Republican, and the latter Spofford, 
Democrat, to the Senate. 

Some appreciation may be had of the confusion and politi¬ 
cal excitment involving the condition of affairs out of which 
the contest arose by the following from the minority 
report: 

“ An election was held in the State of Louisiana on the 
“7th day of November, A. D. 1876, for a Governor and 
“ members of the Legislature. Francis T. Nicholls and 
‘‘Stephen B. Packard each claimed that he was elected 
“ Governor at that election, and on and after the 8th day of 
“ January last each claimed to be the Governor of that 
“ State. Two rival bodies of men composed of persons 
“claiming to have been elected at that election were or- 
“ ganized on the 1st day of January last in the city of New 
“ Orleans, and each claimed to be the lawful Legislature of 
“ the State, one of these bodies commonly called ‘ the Nich- 
“ ‘ oils Legislature* and the other the ‘ Packard Legisla¬ 
ture.* This conflict of claim, aggravated by the recol- 
“ lection of like repeated contests in the past, produced 
“ general angry commotions among the contestants and the 
“ people which seriously threatened the peace of society and 
“ a state of anarchy. Detachments of the army of the United 
“States were employed for many weeks to preserve the 
“ peace and prevent bloodshed. It will not be denied that 
“ the people of that State of all classes and conditions were 
“ profoundly and fearfully agitated.” 

Mr. Kellogg was seated by a strict party vote. Such a 
case is of but little value as a precedent. 

As another instance resulting from the confusion and 
fierce political contest which grew out of the elections of 
1876, Messrs. M. C. Butler, Democrat, and D. T. Corbin, 
Republican, were rival claimants for the seat in the United 


17 


States Senate from South Carolina. The controversy arose 
as to which of two bodies was the legal House of Represent¬ 
atives. One known as the Wallace, or Democratic House, 
presided over by Speaker Wallace, recognized Hampton as 
Governor. The other known as the Mackey, or Republican 
House, presided over by Mackey as Speaker, recognized 
Chamberlain as Governor. The Wallace House and a 
minority of the Senate (11 members) elected Butler, and the 
Mackey House (claimed by the Democrats to be a minority) 
and a quorum of the Senate, elected Corbin. The creden¬ 
tials of both claimants were referred to the Committee of 
Privileges and Elections. 

Before the report by the committee Butler’s case was 
withdrawn from their consideration and he was seated by a 
vote of the Democrats, with two Republican members— 
Messrs. Conover and Patterson. The reasons for the with¬ 
drawal of this case from the committee by the Senate do not 
appear in Taft’s Senate Election Cases, to which I have ref¬ 
ence. The same Democrats who voted against the seating 
of Kellogg voted to seat Butler, and the same Republicans 
who voted to seat Kellogg voted against the seating of 
Butler, with two exceptions above mentioned. 

Corbin’s case was afterwards reported by the committee. 
The majority report in his favor, reported that he was le¬ 
gally elected by a majority and a quorum of both houses, 
and that Butler was not elected, stating, among other rea¬ 
sons, “But admitting all that is claimed by Mr. Butler for 
“ the Wallace House at Carolina Hall, that it was lawfully 
“ organized and had a quorum of the House present, still, 
“ while this would invalidate Mr. Corbin’s election, it would 
“ not make valid Mr. Butler’s election. The single and 
“ isolated House of Representatives of South Carolina can- 
“ not by any process of reasoning, be held to constitute the 
“ Legislature of the State. The Constitution of that State 
11 requires a Senate and House of Representatives for that 
“ purpose, but the Wallace House had no Senate to recog- 


/ 


18 


“ nize it. It stood isolated and alone, and so standing, it 
£t could originate no lawful action. It could no more elect a 
“ Senator than it could enact laws.” 

This position was taken by the Republican majority of the 
same committee, composed of the same members, which, in 
the Eustis case, reported in his favor and declared that they 
express no opinion as to the constitutionality of the act of 
Congress, and the same majority personally of the same 
committee that reported in favor of seating Mr. Kellogg, 
who, they found, had a majority of the House but not of the 
Senate. 

The Democratic minority of the committee in the Corbin 
case reported against his election because they say “both in 
“ fact and in law, therefore, 59 was not a quorum of the 
“ house to do business, and Mr. Corbin was not elected by a 
“ legal Legislature.” 

They took the position as to Mr. Butler that the action of 
the Senate in seating him was res adjudicata. 

Thus we see the Republican majority of the committee 
declaring that Butler was not elected because the Senate, as 
an organized body did not participate, and the Democratic 
minority declaring that Corbin was not elected because the 
House with a quorum did not participate, each division of 
the committee practically holding that a quorum of each 
house is necessary to participate in the election of a Senator. 

Within a few days after the reports were made and be¬ 
fore action thereon by the Senate, Mr. Corbin withdrew his 
claim and no further action was had. 

In the Montana cases we again find the contest as to 
which was legal of two rival legislative bodies, which were 
also divided by party lines—one known as the Iron Hall or 
Republican house, and the other the Court-house or Demo¬ 
cratic house. The Senate was equally divided politically. 
Fifteen members of that body met with the Republican 
House and claimed to elect Messrs. Powers and Sanders, and 
fifteen other members of the Senate met with the Demo- 


19 


/ ; 

.ratio House and claimed to elect Messrs. Clark and Megin- 
niss. Neither side, with the hope of seating respective claim¬ 
ants, could afford to take the position that a majority of the 
Senate was necessary to elect. The question as to which of 
the two houses claiming to be the House of Representatives 
had a quorum and was, therefore, the legally organized House 
depended upoii the elections of the five members from 
Silver Bow county. The five Democrats who claimed to be 
elected acted with the so-called Democratic House, and the 
five Republicans who claimed to be elected acted with the 
so-called Republican House. 

The report of the majority of the Committee on Privileges 
and Elections, to whom this case was referred by the Senate, 
states: “ The whole case, therefore, turns upon the question 
“ which of these two sets of five persons was entitled to sit 
“in the House of Representatives from the county of Silver 
“Bow, take part in the organization and other proceedings 
“ down to and including the time of the election of Senators.” 
The Republican majority of the committe reported that the 
Republicans from Silver Bow county were elected and that 
the Iron Hall House was illegal, and, consequently, Messrs. 
Powers and Sanders were entitled to their seats. The Dem¬ 
ocratic minority of the committee reported that the Silver 
Bow Democrats were duly elected, that the Court-house 
House of Representatives was the legal house, and Messrs. 
Clark and Meginniss were entitled to their seats. The 
qyestion was decided by the Senate by a strict party vote, 
and Messrs. Powers and Sanders were seated. 

I have thus given the Senate cases which, so far as I am 
aware, bear upon the question of this investigation. It is 
true that in certain of them claimants were seated where a 
quorum of the Senate did not participate in the election. It 
is equally true that in nearly all of such cases party lines 
were strictly drawn, and, it cannot be doubted, largely in¬ 
fluenced the result. 

Notwithstanding the results which have been reached in 



20 


certain cases and the dictum of Senate committees, so far 
as my investigation extends, there is a noticeable absence of 
argument to sustain the position that a Senator may be 
elected in conformity with the requirements of the Constitu¬ 
tion without the participation of a quorum of eaeh house of 
the Legislature. And I cannot doubt that when the Senate 
shall investigate and consider the question as constitutional 
lawyers, free from party bias, the precedent in the Harlan 
case will be accepted as the true exposition of the law. 

After a careful investigation and consideration of the 
question, no doubt remains in my mind that the Constitu¬ 
tion of the United States requires that the election of a 
Senator must be by the State Legislature, a quorum of each 
house participating. Inasmuch as a quorum of the Senate 
of the State of Florida did not participate with the House in 
the joint assembly on the 26th of May last, it is my opinion 
that Wilkinson Call was not elected United States Senator. 
I cannot, therefore, in the discharge of duty, certify that he 
was elected. 

FRANCIS P. FLEMING. 


f 



0 041 565 220 3 



























